from the it'll-be-baaaaaack dept

This isn't a huge surprise. After the Senate failed to pass its Cybersecurity Act last year, and the White House threatening to push out an executive order to get its "cybersecurity" agenda moving, one of the two sponsors of the House's cybersecurity bill, CISPA (which did pass), Rep. Dutch Ruppersberger, is promising that the bill will be back soon enough. Ruppersberger says that he's working with the White House to take care of any concerns it had with the bill. All of this was more or less expected. The concern, still, is what do the privacy protections look like in the bill and (more importantly) what the Senate will come up with on this front.

However, there's one big issue that no one has answered. There's plenty of talk about how cybersecurity is a big problem and we're "under siege" and all of that nonsense. But no one seems willing to explain what about current regulations are getting in the way of an effective response to any such "threats"? And that's a problem, because the proposed bills don't seem to do anything in terms of tweaking a specific issue to solve a problem. Instead, they more or less wipe out large, important rules across the board, all because someone screams "it's for cybersecurity!!!!"

from the no-need-for-details,-just-be-angry dept

Cross-posted from

The Dell deal documents are out and they are short of juicy details; we'll have to wait for the proxy for details on things like just how much of a discount Michael Dell is taking on his shares or what exactly the terms of Microsoft's loan are. There is, though, the information that that loan will take the form of $2 billion of subordinated debt, and that the total cash equity investments from Silver Lake, Michael Dell and MSD will total $2.25bn. This seems pretty sensible; Microsoft is effectively writing half of the equity check, though for a fixed-but-subordinated return, plus emotional benefits or what have you. And if you're worried about how easily debt markets will swallow some $3.25bn of bonds, $5.5bn of Term B/C, and billions of assorted other secured financing,1 which with $4bn of existing bonds brings Dell to around 4x total leverage, making $2 billion – almost half a turn – of the debt subordinated, long-term, and emotionally committed can’t hurt.

But for most of the fun stuff we’ll have to look forward to the proxy. And that isn't good enough for some people. Reuters reports that the first shareholder lawsuit over the deal has already been filed, one day after announcement, which I assume means it was in the works before the deal was announced. This sort of amazed me:

Some shareholders said they were angered by the lack of specifics about the deal, making it hard for them to determine if the price was fair. The company, which declined to comment on the lawsuit, had said the board had conducted an extensive review of its strategic options before agreeing to the buyout.

I would characterize myself as mildly saddened by the lack of specifics, but that's why I will wait until the proxy is out and then read the specifics. You know there's a whole section of the proxy explaining why the bankers thought the deal was fair, right?2

There’s nothing new here – as Reuters notes, "Almost every merger worth more $100 million prompts a shareholder lawsuit" -- but the speed continues to amaze. And it's becoming ever more a fact of life:

That’s from this depressing report, which also has a sad-comical list of 16 deals each with 15 or more lawsuits filed. (The tech industry averages 4.9 suits, so, y'know, look out for 3.9 more.)

You can sympathize a little. Management buyouts are of course all about bottom-ticking the stock price; management would be pretty dumb if they took the company private at its all-time high. Dell's various stakeholder communications -- all to the tune of "this will is the start of a whole new chapter for Dell, in which everything will remain exactly the same" -- make that pretty clear: the deal has little to do with operational changes and much to do with the fact that Michael Dell thinks that (1) Dell and (2) debt are both cheap right now.

But that's kind of the market, and the fact of life is that if shareholders think that $13.65 is too cheap for their shares, they can always vote the deal down. By all accounts this deal was pretty fully negotiated, so it seems unlikely that the lawsuit will reveal that Dell and Silver Lake would have coughed up an extra $1 a share if the board had just asked more aggressively. And it's no secret that Michael Dell thinks that his company is worth more than $13.65. Even if that hasn't been specifically disclosed yet.

Each of Bank of America, N.A., Barclays Bank PLC, Credit Suisse AG and Royal Bank of Canada and, in some cases, certain of their affiliates (collectively, the “Lenders”) have committed to provide debt financing for the transaction, consisting of a $4 billion senior secured term loan B facility, a $1.5 billion senior secured term loan C facility, a $2 billion ABL facility, senior secured interim loan facilities consisting of a $2 billion first lien bridge loan facility and a $1.25 billion second lien bridge loan facility (or, alternatively, senior secured first lien and second lien fixed rate notes that would be issued in a high-yield offering pursuant to Rule 144A under the Securities Act of 1933), a $1.9 billion term commercial receivables financing facility and a $1.1 billion revolving consumer receivables financing facility, each on the terms and subject to the conditions set forth in a commitment letter dated as of February 5, 2013 (the "Debt Commitment Letter").

2.The answer is always along the lines of "because you paid us to think that," but still.

from the urls-we-dig-up dept

There's cheating, and then there's cheating. There are obviously bad scams that hurt people or involve the loss of significant amounts of money or property, but some scams are hurtful on a much smaller scale. Here are just a few notable examples of some cheaters who were caught red-handed.

from the publishing-vanity dept

You may have caught wind of an online uproar today surrounding an edition of Anne Of Green Gables. If you're not familiar, it's a set of Canadian stories published in 1908 about a charming, precocious, freckled, red-headed orphan girl, and beloved by a lot of people. As with many things that people warmly remember from their childhoods, its legion of fans fiercely defends its integrity—so you can imagine how they reacted when a new edition appeared on Amazon with a cover depicting the titular character in a way that is quite faithful to modern audience expectations, but not so faithful to the text:

People are appalled, they're outraged, they call it disgusting—a sign of our shallow times where art is warped by corporate pandering. But really, the whole thing is a bit of a misunderstanding, which seems to have been sparked by an NPR "round-up" style column with a bunch of brief news snippets. What a lot of people failed to realize before running with the story (or chose not to emphasize) is that Anne Of Green Gables is public domain, and this edition was published independently through Amazon's CreateSpace. So, all of this broad outrage has really been sparked by one anonymous person using an independent publishing platform. The opinion that the cover choice is stupid seems perfectly legitimate (couldn't it at least be a sexy redhead and not completely betray the text?) but the reaction is a tempest in a teapot. There are tons of editions of the book on Amazon, self-published and otherwise, as is almost always the case with popular public domain works. There's really no conclusion to be drawn from this new edition, other than "some person out there didn't actually read the book," or possibly "gentlemen prefer blondes."

But there is something worth drawing from the controversy that has emerged: there's no difference between traditional publishing and self-publishing in the eyes of the average consumer. They simply don't notice anymore. While this is best demonstrated by the popularity of some self-published books, sitting right alongside books from big authors and big publishing houses in the Amazon listings, it's also demonstrated by a controversy like this, where the public considers one self-published public domain edition to be every bit as representative of "the world of publishing" as one of the major house's "classic" lineups. Can you imagine, even ten years ago, people getting worked up about what would have still been called vanity publishing?

from the speak-out-now dept

We recently wrote about how the school board for Prince George County, Maryland, was considering a policy that would claim the copyright of everything produced by both students and faculty at the various schools in the district. That seemed extreme in so many ways. Some folks have set up a site called Don't Copyright Me, in which they're asking people to sign a petition to be sent to the school board, telling them not to take the copyrights from students and teachers.

While this may seem like a small deal because it involves a single school district, the larger concern is that it actually becomes a bigger deal in the long term, as other school districts may follow suit:

Copyright is getting out of control. Prince George's County is one of the top 25 school systems in the country. If this policy goes into effect, it could set a terrible precedent at a time when quality education is needed more than ever. Students and teachers deserve the same rights as everyone else. With this policy, a high school student could get a takedown notice from their own school for posting a video they made for class on YouTube.

from the biasing-the-comments dept

For years, we've pointed out how ridiculous the USTR's Special 301 Report is. The report, which the USTR is required to put out each year, is basically a chance for copyright and patent maximalists to launder their complaints about certain countries through the USTR, allowing such complaints to get the official stamp of the US government, such that diplomats can pressure countries to implement really bad laws. The whole thing is a joke. Everyone admits that there is no actual objective process that the USTR uses to figure out who has been "naughty" and who has been "nice" when it comes to intellectual property laws. There is just the USTR going through submissions from copyright and patent maximalists, and deciding who has been named enough to be shamed.

Three years ago, we actually tried participating in the open comment period and submitted a comment highlighting the value of not creating a monoculture of maximalism around the globe on these issues, and why merely stamping the industry's claims as legit was probably not a good idea. The end result? The same exact crap as before. Given that this seems to be standard operating procedure for the USTR (and, it's only gotten worse with things like ACTA and TPP), I've not even bothered to submit comments any more. However, if anyone would care to try, the comment period is open through Friday... but it's interesting to note that the instructions for commenting already show that the USTR doesn't want to hear from you. It's really quite incredible. The very explanation of what they're asking for pre-supposes a whole bunch of things, and effectively says "only use this to complain about countries who haven't done enough to help your industry -- that's all we want to hear about."

USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

What about comments from people pointing out countries whose copyright and patent policies are too protective? Not wanted?

Written comments should include a description of the problems that the submitter has experienced and the effect of the acts, policies, and practices on U.S. industry.

Not the US public. Not on US culture. Just on US industry. Yes, the USTR is focused on industry, but the very purpose of copyright and patent law is supposed to be to benefit the public. Shouldn't their interests matter?

In other words, the USTR doesn't care about the public or your interests. All it wants to know is how it can better force other countries into over-protectionist policies that benefit a few legacy industries. You can still submit your own comments, but it seems pretty clear that they don't want to hear from you.

from the so-much-for-that-plan dept

Via TorrentFreak we learn that SMAIS, the Icelandic equivalent to the MPAA, was recently called out for pirating some software. The software, made by Dutch company NICAM, is apparently used for setting up a labeling/rating system for content including movies, video games and more. SMAIS agreed to license the software, which it received, but then it failed to make the payments. Any of them. At all. A NICAM exec is quoted as saying:

From the moment the contract was signed, everything went silent. There was no contact between SMAIS and us, unfortunately. We tried to contact them, but it didn't work.

This, as you might imagine, caused a bit of an uproar in Iceland, with people speaking out against SMAIS. In response, someone there (apparently without very much internet experience) decided the right thing to do would be to set up a Facebook account for SMAIS. Now, if they could actually discuss the various issues, that might not be a bad idea. But... that's not what happened. After being bombarded with critical comments from others, SMAIS shut down the Facebook account with a snarky note about how they needed to hire someone to run the account, and also about how they have "lots to learn." Though, they also claimed that "some freedom fighters think that only some voices have a place on Facebook." Probably not the right spot for a bit of snarkiness, but perhaps it's not so surprising.

from the some-free-advice dept

I had kind of thought that after we posted our response to Teri Buhl, who got upset about our original article about her whacko claims that her publicly posted tweets could not be quoted, that the story would hopefully fade away. However, this morning, Jim Romenesko, who allowed Buhl to "respond" to us via his blog, has published another story noting that the thanks he received from Buhl is that she is threatening to sue him. Lovely. Oh yeah, and in her communication with Romenesko, she apparently told him she's planning to sue us at Techdirt, too (which, by the way, is the first we've heard of this):

Today, Buhl is threatening to sue me for using the photo from her Twitter page. She says she owns the image and never gave me or others permission to publish it. She adds that she's going to file a small claims suit against Mark Bennett and Techdirt for keeping the photo on their sites after being told to take it down.

"I don't want add you the same list [sic]," she writes. "I'm asking Poynter and Knight to do the same thing today before I file."

My response to her: "Really, Teri?"

She replied:

yes really Jim – I am going to push it. It's a matter a principle I am sick of other publications lifting other jurnos ideas, photos, words etc… and printing them on their publications with out permission or proper credit with links etcc. I think it's an issue that should have been challenged a long time ago. I took the photo I own it etc…

Of course, in our last post on the subject, we suggested that Buhl acquaint herself with fair use rules. It would appear that she has chosen not to do that. We did not "lift" her "ideas, photos, words." We reported on her actions and statements.

It also appears that she has not familiarized herself with the nature of copyright law, and the fact that small claims courts have no jurisdiction over copyright issues. Not that I should be doing the legal work the lawyer she claims to have contacted failed to do, but 28 USC 1338 notes:

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.

This is kind of basic stuff.

Amusingly, just a few weeks ago, we wrote about the Copyright Office exploring the idea of setting up a small claims court for copyright. But, as of right now, it does not exist.

And, even if we ignored that pesky bit of information, we've still got the fair use hurdle, which she can't get past. She claims "I took the photo I own it etc." Except, it's not that simple. If she took the photo, she might hold the copyright on certain elements of the photo -- but that is not the same as "owning" the entire photo and being able to block any and all uses of it. This is another thing any lawyer would hopefully explain to her. Our use of the photo, to show the key point of contention that led to the story (her claiming via her Twitter profile, incorrectly, that no one could quote her Twitter feed), was clearly for the purpose of reporting on her claims. Suing us, Bennett (a lawyer) or Romenesko would not likely go well for Buhl who seems very focused on bluster, with little legal basis to back it up. We could go through a very, very, very long list of case law and the actual text of copyright law that shows that what we did is absolutely reasonable and protected action, but I guess we'll save it for this "lawsuit" should it ever actually be filed.

Oh, and one more thing. In the comments on the Romenesko post, she makes this rather incredible statement:

how about this - no one who wrote about this little debate has bothered to call an experienced copyright lawyer and get a comment. I did before I wrote Jim.

This is actually wrong on so many levels. The initial story, involving her original claims, included "experienced copyright lawyer" Marc Randazza noting that her claims were "moronic." However, for her edification, this morning I reached out to three more "experienced copyright lawyers" who agreed that she doesn't seem to understand the law, on a whole variety of levels, as we discussed in our response to her many attempts to contact us, and as explained above.

In the meantime, Mark Bennett, who wrote the original post that kicked this whole thing off, has been doing a nice job cataloging the ever-changing legal theories that Buhl keeps tossing out there -- none of which have much basis in reality:

That republishing tweets designated "not for publication" can be the basis for a lawsuit.

That she hadn't written the tweets I republished ("Mark did you fact check my twitter feed to make sure I tweeted what you published?").

That I libeled her.

That retweeting "protected" tweets can be the basis for a lawsuit ("I think the question is if tweets are protected are they public").

That republishing her tweets violates her copyright.

That republishing her background photo violates her copyright.

As he notes: "Changing theories is always a good indication that the person threatening a lawsuit has no good reason to sue: if you have a reason to file suit, you know it."

So, once again, Ms. Buhl might want to think carefully before proceeding with any planned legal action against us or others. Contrary to her stated opinion, these are not unsettled matters, nor is the law in her favor. Similarly, she might want to recognize that, once proven wrong, digging in and making further claims is not a productive course of action. Sometimes it's okay to admit that you were wrong, and to let it go.

from the interesting-move dept

Over the years, we've written many, many stories of completely bogus DMCA takedowns. It's a pretty common occurrence. Sometimes it's done accidentally by clueless bots (or clueless humans). Sometimes it's done maliciously. We just had a case that appeared especially egregious, involving a site copying another sites' articles, then claiming copyright over the originals in order to take down the original stories (which just happened to paint a professor in a very poor light for allegedly faking parts of some high profile research). That story inspired David Weekly (founder of PBWiki, HackerDojo, SuperHappyDevHouse and a few other things) to do something: he set up the site DMCAInjury.com, which is just a simple Google spreadsheet input form at this point, but hopefully can become something much more.

David has pointed out that it would be handy to have some more cases in which the filers of bogus DMCA notices are actually punished for their actions under section 512(f) of the DMCA. As we discussed last year, it's very difficult to win a 512(f) claim, in part because the language is so vague and so far courts have interpreted it pretty narrowly.

However, as David points out, there have been some successful cases, including the case that the EFF ran against Diebold nearly a decade ago. David was actually one of the plaintiffs in that case. If you don't remember, someone had leaked some internal documents from Diebold (makers of e-voting machines) which showed the company was well aware of massive security problems with their machines. Diebold first tried to claim the documents were fake and then used the DMCA to claim they were covered by Diebold's copyright and that it could issue takedowns on them. As you might have noticed, those two claims would contradict each other. Either way, a judge pointed out that:

"no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright."

The problem, of course, is that there just aren't that many such cases (there are a few scattered ones, including the Lenz case we've been talking about recently). So finding such cases, and actually having them go to court could be useful -- though I still think strengthening the ability to punish bogus DMCA notices would be helpful (well, and changing the entire DMCA takedown process, but that's another post for another day). Via email, David admits that this is just a "trial balloon" to see if it turns up any interesting cases of bogus takedowns that might make for good 512(f) cases. And that would be good, though the weaknesses of 512(f) still make it pretty difficult to find ideal cases, even as we see DMCA abuses all the time.

Even with that being the case, if this effort doesn't turn up bogus takedown notices for new cases, at the very least, perhaps it will create a useful dataset to explore the nature and frequency of bogus DMCA takedowns.

from the this-is-a-bad-idea dept

As a whole bunch of folks have been sending in, up in Canada, as part of a discussion on anti-spam laws, the Canadian Chamber of Commerce is proposing a very troubling idea: allowing rootkit spyware to be installed surreptitiously for the purpose of stopping illegal activity. As Geist notes, the last time this battle was fought, it was fresh on the heels of the Sony rootkit debacle, so there wasn't much support for these concepts. But, with a few years distance, the industry groups are trying again. Specifically they either want to remove language that prevents the surreptitious installation of spyware -- or they want specific exemptions. For example, in the case of the following, they argue spyware should be allowed:

a program that is installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) present a risk or threatens the security, privacy, or unauthorized or fraudulent use, of a computer system, telecommunications facility, or network, or (ii) involves the contravention of any law of Canada, of a province or municipality of Canada or of a foreign state;

Basically, as long as you claim that you're going after someone for breaking the law, surreptitious installs are allowed. Geist points out the obvious: copyright holders will salivate over this.

This provision would effectively legalize spyware in Canada on behalf of these industry groups. The potential scope of coverage is breathtaking: a software program secretly installed by an entertainment software company designed to detect or investigate alleged copyright infringement would be covered by this exception. This exception could potentially cover programs designed to block access to certain websites (preventing the contravention of a law as would have been the case with SOPA), attempts to access wireless networks without authorization, or even keylogger programs tracking unsuspecting users (detection and investigation). Ensuring compliance with the law is important, but envisioning private enforcement through spyware without the involvement of courts, lawful authorities, and due process should be a non-starter.

If this works in Canada, expect to see similar provisions start popping up elsewhere around the world in short order.

from the goes-way-beyond-that dept

One argument that we've seen in favor of copyright law is that it's no different than a contract: that is, if you agree to purchase something under copyright, it's no different than accepting the terms of a contract. And, as they say, if you "don't like the contract, don't do the deal." Thus, "if you don't like the copyright, don't buy the product." However, as Rick Falkvinge points out, copyright has some significant differences that actually serve to make it antithetical to the right to contract, in that it goes way beyond just the contracting parties to absolutely everyone.

Let’s look at what happens when Alice sells a DVD to Bob (possibly through an intermediary that, for all intents and purposes, mediates the contract), and the sale includes a written condition to not share the bitpattern on the DVD with anyone else, which Bob even reads, understands, contemplates, and signs.

In this case, Bob would be bound by contract to not share that bitpattern. So far, so good. But let’s assume he does anyway. He shares the bitpattern with Carol, who manufactures a copy of the DVD using her own parts and labor.

In this, Bob would be in breach of contract with Alice. But what about Carol’s copy? Carol has signed no contract with Alice whatsoever, and contracts aren’t contagious in the sense that they follow the original object, concept, idea, or pattern; they require voluntary acceptance from an individual, which Carol has not given. Carol has signed no contract, neither with Bob nor with Alice.

Thus, Carol would not be bound by the original contract in the slightest on a functioning free market, regardless of Bob’s breach, and she would be free to share the bitpattern of her own copy of the DVD as much as she pleased with David, Erik, Fiona, and Gia, who could all manufacture their own copies from the bitpattern that Carol shared, without any breach of contract having taken place.

But, of course, that's not what happens. Copyright isn't like a contract because all sorts of people who never agreed to any such contract are automatically and unavoidably bound by its terms. In fact, as Falkvinge points out, at this point, it has become the exact opposite of the freedom to contract, because it bars Carol from her own freedom to contract:

The copyright monopoly limits Carol’s rights to sign contracts in her turn regarding her property that she manufactured with her own parts and labor – the DVD with the bitpattern: it limits her ability to sign contracts with David, Erik, Fiona, and Gia regarding this piece of property, should she desire to do so. For example, with the copyright monopoly in place, she cannot even legally execute one of the simplest forms of transaction – a transfer of property. She can’t make additional copies of her own property and sell them, or even give them away without any terms whatsoever.

Whether or not you think such restrictions are reasonable, it seems clearly incorrect to argue that copyright is merely a form of the right to contract.

In February the Safe Internet League is starting an experimental access to the "clean Internet" in one of Russia's regions. Users in the test region will only be able to access pages and sites that have been checked by the League's experts.

It's hard to know what's worst about this approach. Maybe the idea that there is such a thing as a "clean Internet", or that self-appointed experts have the right to decide what is clean and what isn't. Or perhaps just the belief that it is possible to create a whitelist that isn't utterly useless. According to the report above, the League hopes to have a million "resources" available to users at launch; meanwhile, in the real world, Google says it indexes 30 trillion Web pages....

from the this-dept.-line-is-patented dept

We've written a few times about a patent trolling operation called Personal Audio. Like so many patent trolling companies, who's actually behind it is something of a mystery, but it does have an empty office in East Texas that no one ever goes to. It sued Apple and others claiming that it held patents on the concept of "playlists" and actually scored some victories. Amazingly, it sued Apple multiple times over the same patent, arguing that small changes to its products were new violations.

Well, the company is back with a "new" patent, 8,112,504, called a "System for disseminating media content representing episodes in a serialized sequence" and appears to be claiming that podcasting itself violates the patent -- and has sued three podcasters, including Adam Carolla's "ACE Broadcasting," HowStuffWorks and Togi Entertainment. Personal Audio focuses on claim 31 of the patent, which you can read here:

31. Apparatus for disseminating a series of episodes represented by media files via the Internet as said episodes become available, said apparatus comprising:

one or more data storage servers,

one or more communication interfaces connected to the Internet for receiving requests received from remotely located client devices, and for responding to each given one of said requests by downloading a data file identified by a URL specified by said given one of said requests to the requesting client device,

one or more processors coupled to said one or more data storage servers and to said one or more communications interfaces for:

storing one or more media files representing each episode as said one or more media files become available, each of said one or more media files being stored at a storage location specified by a unique episode URL;

from time to time, as new episodes represented in said series of episodes become available, storing an updated version of a compilation file in one of said one or more data storage servers at a storage location identified by a predetermined URL, said updated version of said compilation file containing attribute data describing currently available episodes in said series of episodes, said attribute data for each given one of said currently available episodes including displayable text describing said given one of said currently available episodes and one or more episode URLs specifying the storage locations of one or more corresponding media files representing said given one of said episodes; and

employing one of said one or more communication interfaces to:

(a) receive a request from a requesting client device for the updated version of said compilation file located at said predetermined URL;

(b) download said updated version of said compilation file to said requesting client device; and

(c) thereafter receive and respond to a request from said requesting client device for one or more media files identified by one or more corresponding episode URLs included in the attribute data contained in said updated version of said compilation files.

Now, let's be clear. This patent was applied for on March 4, 2009 and granted on February 7, 2012. Isn't it great that the "new" USPTO is now rushing through patent approvals, so examiners like Carl Colin could claim that this patent was both "new" and "non-obvious" to those skilled in the art, when podcasting itself has been around since at least 2004. Hell, why not look it up on, oh, HowStuffWorks -- one of the companies being sued for "violating" this patent that wasn't applied for until 2009? Incredibly, Adam Carolla's podcast started on February 23, 2009... or exactly two weeks before this patent was applied for. Update: As pointed out in the comments, this is actually a "child" patent of an earlier application, so they can argue a priority date from back in 1996. In other words, this is really a submarine patent (which were supposed to have been outlawed).

Of course, with so many podcasters out there, Personal Audio is not just focused on the three companies it's sued. The EFF notes that the company has sent out licensing demands to a bunch of other podcasters, as well. The good news is that the EFF is now trying to help those podcasters fight back.

What might make this even more interesting would be if people like Adam Carolla, who have huge audiences that take what they say really seriously, were able to get those audiences suddenly interested in just how totally screwed up our patent system is. Want the problems of the patent system to go mainstream? Just start having Adam Carolla talk about how messed up it is a few times on his podcast. Carolla has said that his podcast is the most downloaded podcast ever -- and if his listeners understood just how screwed up things are with the system, perhaps we could actually make a move towards really fixing an incredibly broken patent system. Carolla has apparently talked about it a little bit, and called for a "grassroots legal defense fund," but that's not going to change the actual system. If he could speak out against the problems of the overall system, rather than just that one patent, it might help permeate the public consciousness that it's the system itself that's broken.

from the goodbye-first-sale,-goodbye-jobs? dept

As Techdirt reported a few months back, the Supreme Court Justices seem rightly concerned about the "parade of horribles" -- things that would happen if the decision in the Wiley v. Kirtsaeng copyright case over whether or not you have the right to resell a foreign-made product you bought were applied generally. In the oral arguments, the line of Wiley's lawyer was essentially: nothing bad will happen, because copyright holders would never dream of using the decision to make outrageous demands.

In response to a faculty request, we purchased a DVD of this film through an ordinary commercial channel. Going directly to a retail outlet in this case was the fastest way to fulfill the request, as librarians will surely understand. But somehow the film's producer found out that our library owned a copy of this film, and they have been asserting to us that we need to buy an additional license, at three times the retail price we paid for the DVD, in order to lend the film.

That's not the case, because first sale allows the library to lend out the DVD if it wishes. However, if the DVD had been manufactured abroad, and the Kirtsaeng decision applied, the library would not have been able to do that. The second story concerns physical books:

A donor to [a] library had given them some books, amongst which was a copy of a specialized textbook that is currently in use at the school. Subsequently, the library has been contacted by the publisher of the textbook who has told them that they are not permitted to place the copy of the book that they were given in their library.

Apparently, the fear was that students might make photocopies instead of buying the book. But again, the first sale doctrine means that the publisher has no power to demand the book be removed from the library in this way. And once more, if the Kirtsaeng ruling applied, and the book had been printed abroad, the publisher would have that extraordinary right to determine which of its books could be lent out - thus ripping the heart out of the present library system.

In fact, so great is the additional control that publishers would have over titles not printed in the US in this situation, that Smith suggests there is likely to be a rush to off-shore operations:

If the Supreme Court does hold that first sale applies only to copyrighted works made in the U.S., publishers will have a strong incentive to move their manufacturing operations off-shore. In making its ruling in Kirtsaeng the Second Circuit admitted as much. If a publisher has its books printed or its DVDs pressed in the U.S., it will be very difficult for it to implement truly tiered pricing [that is, to charge libraries extra for books or DVDs that will be lent out -- something publishers are keen to do.] But if it moves those operations overseas, it might be able to stop libraries from lending materials without a separate, expensive license. It might also be able to forbid libraries from lending certain books entirely, like textbooks. It might even be able to stop students from selling their textbooks second-hand to the next crop of students taking the course. The experiences libraries have had with e-books proves that these goals are important to publishers.

In other words, it won't just be the public and libraries that lose out massively if the first sale doctrine is not upheld for foreign goods involving copyright: it's quite likely that many US workers will suffer too, as a wide range of industries move manufacturing offshore in order to obtain even more control over how people use their products.